Bemis v. Horner

Gary, J.

The appellees sued the appellant upon a promissory note:

“ Chicago, June 2, 1891.

$5,000.

Four months after date, I promise to pay to the order of James W. Miller, Esq., five thousand dollars at the First National Bank. Value received.

H. V. Bemis.”

Indorsed:

“ James W. Miller.”

November 2,1891, Bemis filed his plea of non assumpsit, with an affidavit that he believed that he had a good defense upon the merits to the whole' demand, and on the 13th of the same month obtained leave of the court to file special pleas within five days thereafter. None were filed until the 19th, when four pleas were filed alleging in effect that the note was made and left in the hands of one Mitkiewict for a special purpose, never accomplished, and one of them avers that Miller stole the note. Each plea alleges that of the premises the plaintiff had notice, but does not say when, except that one of them says “ then and there,” and no time or place had been before mentioned in the plea. November 21, 1891, the plaintiff moved the court to strike out the pleas because they were not filed in time, and read affidavits that in effect stated that Bemis had acknowledged to the affiants that he had no defense, but could delay the collection of the notes. The court struck out the pleas, and two days later Bemis moved the court to vacate that order and by his affidavit denied the versions given by those affiants of his conversations with them; asserted that “the note was fraudulently negotiated, and was fraudulently diverted from the purpose for which it was made,” and that by the depositions of certain witnesses named he expected that he would “ be able to substantiate the essential factfe alleged in the special pleas.”

This motion the court denied, and upon a trial there was a verdict for the plaintiff upon which judgment was entered. “ The defendant may plead as many matters of fact, in several pleas, as hé may deem necessary for his defense;” Sec. 29, Chap. 110, Practice; but as a matter of right, he must put in all his pleas at one time. Bensley v. Brockway, 27 Ill. App. 410; Lincoln v. McLaughlin, 74 Ill. 11; Millikin v. Jones, 77 Ill. 372; Hulbert v. Comstock, 11 Gray, 14.

Tet the discretion of the court to permit or refuse additional pleas, where justice requires them, is not an arbitrary one. Misch v. McAlpine, 78 Ill. 507. The court committed no error in striking out pleas which, not being filed within the leave, were filed without leave, upon such a showing as was made of the lack of any defense. As to the motion to vacate that order, which if it had been granted would have left the pleas on file, it should be treated as a motion on tho 19th, to file the pleas, ought to be treated.

Bow, not criticising the affidavit of Bemis for its generality and lack of any statement of circumstances, the pleas themselves were bad. The plaintiffs are presumed, until the contrary is shown, to be tona fide holders, without notice, etc. 1 Dan. Neg. Instruments, Sec. 812. Under our statute their right can be challenged only by special pleas. Sec. 9, Chap. 98. Bone of the pleas allege that the plaintiffs had notice of anything when they took the note. Botice afterward cuts no figure. Such allegations were necessary to make the pleas good. Bramah v. Roberts, 1 Scott, 350; S. C., 1 Bing. N. C. 467; 27 E. C. L. 724; Uther v. Rich, 10 Adolph. & E. 784; 37 E. C. L. 411; Lewis v. Bailey, 1 A. & E. (N. S.) 349; 41 E. C. L. 572; Goodman v. Simonds, 20 How. (U. S.) 343-367; Bailey v. Bidwell, 13 Mee. & Wel. 73; Harvey v. Towers, 6 Exch. 656.

And though proof of fraud, illegality, etc., in the making or original circulation of a note, will cast upon the holder the burden of showing that he is such for value, etc., (1 Dan. Neg. Ins., Sec. 815,) yet this is a rule of evidence only, and not of pleading, as the Supreme Court of Indiana regarded it in First National Bank v. Ruhl, 122 Ind. 279. The pleas being bad the court would not ,err in refusing leave to file them. Chicago Driving Park v. West, 35 Ill. App. 496.

If in fact the appellant has a meritorious defense to this note, it is greatly to be regretted that he is cut off from making it; but we can only determine whether any error of the court has deprived him of any right, and finding no error the judgment is affirmed.

Judgment affirmed.